| Manto v Cerbone |
| 2010 NY Slip Op 02757 [71 AD3d 1099] |
| March 30, 2010 |
| Appellate Division, Second Department |
| Laura Manto, as Administratrix of the Estate of Guido Aceto, et al.,Appellants, v Vincenzo Cerbone et al., Respondents. |
—[*1] Miranda Sambursky Slone Sklarin & Verveniotis LLP, Elmsford, N.Y. (Barack P. Cardenasand Richard Sklarin of counsel), for respondents Vincenzo Cerbone, Vincenzo CerboneRevocable Living Trust, and Ida Cerbone. Greenfield, Pusateri & Ruhl, Uniondale, N.Y. (Brian J. Greenfield of counsel), forrespondent Manducatis Restaurant, Inc.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited bytheir brief, from so much of an order of the Supreme Court, Queens County (Rosengarten, J.),entered December 3, 2008, as granted those branches of the cross motion of the defendantsVincenzo Cerbone, Vincenzo Cerbone Revocable Living Trust, and Ida Cerbone, and theseparate cross motion of the defendant Manducatis Restaurant, Inc., which were for summaryjudgment dismissing the complaint insofar as asserted against each of them.
Ordered that the order is reversed insofar as appealed from, on the law, with one bill of coststo the plaintiffs payable by the defendants appearing separately and filing separate briefs, and thematter is remitted to the Supreme Court, Queens County, for further proceedings consistentherewith.
In July 2003 the plaintiffs' decedent, Guido Aceto (hereinafter the decedent), allegedly wasinjured when he tripped and fell at the premises leased by the defendant Manducatis Restaurant,Inc. (hereinafter Manducatis), and owned by the defendant Vincenzo Cerbone Revocable LivingTrust. Manducatis is owned by the defendants Vincenzo Cerbone and Ida Cerbone.
In September 2005 the decedent and his wife, suing derivatively, commenced this actionagainst the above-mentioned defendants. On January 27, 2007, the decedent passed away due toan unrelated condition. As a result, the Supreme Court automatically stayed all proceedings inthe action. In March 2008 the plaintiff wife moved to vacate the stay and to substitute LauraManto as the administratrix of the estate of Guido Aceto, in place of the decedent as a plaintiff inthe action. The defendants then moved, by way of two cross motions, for summary judgment,inter alia, dismissing the complaint.
In the order appealed from, the Supreme Court granted the plaintiffs' motion and alsogranted those branches of the defendants' cross motions which were for summary judgmentdismissing the complaint. The plaintiffs appeal from so much of the order as awarded thosedefendants summary judgment dismissing the complaint.[*2]
Upon the death of the decedent, the proceedings werestayed by the Supreme Court until the appointment of a personal representative for his estate(see CPLR 1015 [a]; Rumola v Maimonides Med. Ctr., 37 AD3d 696 [2007];Gonzalez v Ford Motor Co., 295 AD2d 474, 475 [2002]; see also Reed v Grossi,59 AD3d 509, 511 [2009]; Singer v Riskin, 32 AD3d 839 [2006]). Any determinationrendered against a deceased party pending substitution of a legal representative for the estate ofthat party is generally a nullity (see Reed v Grossi, 59 AD3d at 511). This is becausewhen a party dies, the Supreme Court is "divested of jurisdiction to act" (Rumola vMaimonides Med. Ctr., 37 AD3d at 696; Gonzalez v Ford Motor Co., 295AD2d at 475; see Singer v Riskin, 32 AD3d 839 [2006]).
Here, while the Supreme Court, in the order appealed from, first substituted a personalrepresentative of the decedent's estate in place of the decedent as a plaintiff and also granted thecross motions seeking summary judgment dismissing the complaint, it was error for the SupremeCourt to have considered the cross motions since the cross motions were made at a time whenthe stay was still in effect (see e.g. O'Brien v Town of Huntington, 297 AD2d 315[2002]; Matter of Pickerell v Town of Huntington, 219 AD2d 24 [1996]; SutphinTrust v Capalino, 104 AD2d 802 [1984]). Moreover, the personal representative of thedecedent's estate, the newly-substituted plaintiff, was not afforded an opportunity to oppose thedefendants' cross motions since she was not a party at the time that the cross motions were made.Accordingly, we remit the matter to Supreme Court, Queens County, for further proceedings,including service by the defendants, if they be so advised, of the cross motions upon theplaintiffs, for the submission of answering papers, if any, pursuant to CPLR 2214, and for adetermination of the cross motions on the merits.
In light of our determination, we do not reach the parties' remaining contentions. Fisher, J.P.,Florio, Belen and Austin, JJ., concur.